Opinion
No. 13-72488
06-10-2015
VICTORIANO GAUNA-SALAZAR, AKA Victoriano Gauna, Petitioner, v. LORETTA E. LYNCH, Attorney General, Respondent.
NOT FOR PUBLICATION
Agency No. A036-586-234 MEMORANDUM On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted June 5, 2015 Pasadena, California Before: BYBEE and BEA, Circuit Judges, and FOOTE, District Judge.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
The Honorable Elizabeth E. Foote, District Judge for the U.S. District Court for the Western District of Louisiana, sitting by designation.
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Petitioner Victoriano Gauna-Salazar seeks review of the Board of Immigration Appeals's (BIA) order dismissing his appeal from the immigration judge's (IJ) order of removal. We deny in part and dismiss in part his petition.
1. Gauna concedes his claim the BIA improperly applied the modified categorical approach to Cal. Health & Safety Code § 11378 is foreclosed by Coronado v. Holder, 759 F.3d 977, 985-86 (9th Cir. 2014). We deny his petition as to that claim but note it is preserved for en banc or Supreme Court review.
2. Gauna claims the BIA failed to consider his IJ-bias, asylum, withholding-of-removal, and CAT claims and seeks remand to the BIA for consideration of those claims in the first instance.
The BIA is "not free to ignore arguments raised by a petitioner." Id. at 987. But the opposite is also true. The BIA need not address arguments not raised. Cf. Alvarado v. Holder, 759 F.3d 1121, 1127-28 (9th Cir. 2014). Here, the BIA did not address Gauna's IJ-bias, asylum, withholding-of-removal, and CAT claims because—even liberally construing his pro se briefing—Gauna failed to raise them. As such, those claims are unexhausted, and we lack jurisdiction to consider them. See 8 U.S.C. § 1252(d)(1).
DENIED IN PART and DISMISSED IN PART.